DPC-Unit-I (1) (2) (1).pptx notes VIPS COLLEGE

Drafting Pleading Unit 1 sem 9

1. Drafting, Pleading & Conveyancing DISCLAIMER: No copyright violation is intended. The content is purely for educational purpose. Ms. SAMRITI, ASSISTANT PROFESSOR, VSLLS, VIPS-TC

2. PLEADINGS?

3. PLEADINGS Order VI of the CPC, 1908 pertains to Pleadings Generally What are Pleadings? According to Rule 1 Pleadings shall mean plaint or written statement. Pleadings are plaint filed by the plaintiff and written statement filed by defendant. The dictionary meaning of the term ‘plead’ means ‘ to state and argue a case ’. Therefore, pleading comprises of respective contentions of the parties in a dispute, which are reduced into writing. Pleading are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trail and giving all such details as his opponent needs to know in order to prepare his case in answer. Generally there are two pleadings in a suit, namely: The Plaint- A statement of claim in which the plaintiff sets out his cause of action with all necessary particular and The written statement- A defence in which the defendant deals with every material facts alleged by the plaintiff in his statement of claim (plaint), and also states any new facts which tell in his favour.

4. Cont. Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and defences . In Civil proceedings the plaintiff submits a plaint stating the cause of action -- the issue or issues in controversy. The defendant submits an answer- the reply- the written statement- stating his or her defences and denials. In other words it is nothing but the formal presentation of claims and defences by parties to a lawsuit.

5. FUNCTIONS & OBJECT OF PLEADINGS Object- Is to enable the parties to know, before the trail, the real point to be discussed and decide.

6. Fundamental Rules of Pleadings Facts Probanda & Facts Probantia The rule that every pleading must state facts and not law is subject to the following exceptions: Foreign Law Customs Mixed question of law and fact Inferences of law Embodied in Order VI Rule 2 - The party pleading must plead all material facts on which he intends to rely for his claim or defence as the case may be; and - Material facts only should be pleaded, and that no fact which is not material should be pleaded, nor should the party plead evidence, nor the law of which a Court may take a judicial notice. Exceptions : Condition Precedent ( This follows from the provision contained in Order VI Rule 6 C.P.C.) Presumption of Law ( Order VI Rule 13, C.P.C.) Matters of Inducement

7. Cont … Facts not Evidence At the stage of pleading, the court and the opposite party should be supplied with the facts and such contentions on which the claim is founded . According to Order VI Rule 2 of C.P.C. every pleading shall contain a statement of the material facts on which the party pleading relies for his claim or defence but not the evidence by which they are to be proved. During drafting a plaint, a lawyer must distinguish between facts which are asserted and which have to be established through evidence whether documentary or oral, and facts which are, by themselves, in the nature of evidence. The plaintiff must keep the facts in evidence for a later stage of evidence.

8. Cont … Question? Evidence also consists of facts. Therefore, how then to distinguish between the two kinds of facts? facta probanda - The material facts on which a party relies. The facts which are to be proved. facta probantia - The evidence or the facts by means of which they are to be proved. These are not to be stated. Mental Condition : Order VI Rule 10 Notices: Rule 11 of Order VI Implied Contract or Relation: Order VI Rule 12 Presumptions of Law: Order VI Rule 13 Facts Probanda & Facts Probantia

9. Cont … Fourth rule of Pleading Each party should state his case with Brevity . It can be attained by omitting unnecessary facts , unnecessary details when alleging material facts & by giving proper attention to the language used in alleging material facts. Another quality of pleading is Precision. It can be attained by avoiding pronouns , like- he, she, that or this, by accurately stating the names of persons and places , avoid referring plaintiff and defendant by their names , things should be called by their correct names & in any event the same thing should be described by the same pleadings to call the same property, avoid using ifs and but allege your facts boldly, avoid complex sentences , divide pleadings into separate paras and state one fact in one para (as far as possible), avoid repetition.

10. PLEADING GENERALLY

11. Amendment of Pleadings When can pleading be amended? How can pleading be amended? Objective of allowing amendments? Kinds of Amendments?

12. Cont … Compulsory Amendment At the instance of Court, or opposite party. If pleadings happens to be defective or incomplete (subjected to exceptions) The Court may struck or amend matter in any pleading (R-16 O-VI) Reject the plaint Voluntary Amendment By amending one’s own pleading with the leave of the Court

13. CONVEYANCING The dictionary meaning of the ‘ Conveyance ’ is ‘ an act by which property is conveyed or voluntarily transferred from one person to another by means of a written statement and other formalities ’. It also means ‘ instrument ’ itself. Therefore, the term conveyancing does not apply to the Court proceedings, rather it is applicable to the instrument, which have been documented not for the purpose of Court proceedings, rather for the purpose of creating evidence of a particular transaction , which may be used before the Court in case of any dispute. Broadly one can say that the pleading and conveyancing may be distinguished by simply stating that while the pleadings are applicable to Court proceedings and conveyancing is applicable to the documentation done outside the Court and not meant for the Court proceedings particularly, though they may be used in the Court proceeding, in order to substantiate a particular contention, claim or submission.

14. Plaint Structure Order VII of the CPC deals with the plaint. A suit is instituted by filing a plaint, which is the first pleading in a civil suit. It is a statement of the plaintiff’s claim and its object is simply to state the grounds upon, and the relief in respect of which, he seeks the assistance of the Court. Three essential parts of a plaint are:

15. The Heading & Title Heading: Name of the court in which the suit is brought. For e.g.- ‘ In the Court of the Civil Judge at Allahabad’ This is followed by the number of the suit in the next line. For e.g.- Suit No. ---- of 1972 (according to the practice of the court). Title: Name, description and place of residence of the plaintiff. Name, description and place of residence of the defendant (as far as it can be ascertained). E.g. ‘AB, son of ………….., a minor, by CD, son of ………… his next friend ………….plaintiff Versus ‘PQ, son of ………….., a minor, through his guardian ZZ, son of ………… defendant’ Or ‘AB, son of ………….., a person of unsound mind, by his next friend DE, son of ………….’ Part-I

16. Cont. Examples of plaintiff or defendant in different capacities Individual person - AB S/o………Aged….. Res. of………….. Proprietary concern - AB S/o………Aged….. Res. of…………..proprietor of MIs XYZ and carrying on business at …………. Partnership firm – M/s XYZ, a partnership firm registered under the Indian partnership Act, 1932 with its principal place of business at …………. A company - M/s XYZ, Pvt. Ltd. A company incorporated under the companies Act having its registered office at…………. Company in Liquidation - M/s XYZ Ltd. In liquidation through liquidator Mr. ABC having office at …………. Statutory Corporation - The Life Insurance Corporation of India established and constituted under the Life Insurance Act, having its registered office at ………….

17. The Body of the Plaint It composes of two portions: Part-II

18. Cont. Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect. Facts constituting cause of action and when it arose. Facts showing that court has jurisdiction The relief which the plaintiff claims. Where the plaintiff has allowed a set off or relinquished a portion of his claim, the amount so relinquished should be clearly stated. Statement of the value of the subject matter of the suit for the purposes of jurisdiction and court fees. Where the suit is for recovery of money, precise amount claimed. Where the suit is for mesne profit or accounts or movables in the possession of the defendants or debts which cannot be precisely determined, the plaint shall state approximate value thereof. Where the suit is for immovable property plaint should sufficiently describe the property so as to make it identifiable. Where the plaintiff is suing in a representative character, the plaint shall show that he has an actual existing interest in the subject matter and he has taken necessary steps to enable him to institute the suit. The liability and interest of the defendant shall be shown in the subject matter of the suit and that the defendant is liable to be called upon to answer the plaintiff’s demand. Where the suit has been filed after the expiry of the period of limitation, the plaint shall show the ground upon which exemption from such law is claimed.

19. The Relief Claimed Part-III

20. Cont. Signature and Verification : The plaint must be signed by the plaintiff through advocate. But if the plaintiff is, by reason of absence or for other good cause, unable to sign the plaint, it must be signed by any person duly authorized by him to sign the same. The verification is done by the plaintiff himself. Verification I…….. (Name), S/o Sri................... (Father’s name), the aforesaid plaintiff do hereby verify that the contents of paragraphs …… to …. of the above plaint are true and correct within my personal knowledge and that the contents of paras………..to ……. (mention the paras by their number in the pleading) I believed to be true on information received. Signed and verified this at ……….(Place) on this ………….. (Date) day of month/years. Sd /- (Plaintiff)

21. Exercise- Draft a Plaint Suit for Ejectment and Arrears of Rent Property situated in Delhi Rent amount Rs. 26,000/- PM Verbal agreement between P and D was made on………. For a monthly tenant to the plaintiff in respect to the house

22. Exercise- Draft a Plaint Suit for dower after dissolution of marriage The Plaintiff married to the Defendant on July 20, 1981. At the time of marriage the guardian of both Plaintiff and Defendant (who were minor at that time) had a verbal agreement that the plaintiff’s dower should be Rs.8,000/- (prompt and deferred). The defendant divorced the plaintiff at her father’s house on August 3, 1984 by uttering words ‘I divorce you’ three times before the plaintiff. The defendant has not paid the said some of Rs. 8000/- or any part thereof. Moreover, the plaintiff never made any demand of her prompt dower during the continuance of marriage.

23. Exercise Mr. A borrowed Rs. 1,00,000/- from Mr. B on 1.1.2001 and agreed to repay the loan on demand (or within six months) with interest at 12 %pa. Mr. B demanded repayment of the loan on 1.3.2001, 1.4.2001, 1.5.2001. Mr A has not made any payment. Draft preliminary objections for a written statement in a suit for money lent.

24. Written Statement Written statement is the statement or defence of the defendant by which he either admits the claim of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint. The written statement must specifically deal with each allegation of fact in the plaint and when a defendant denies any fact, he must not do so evasively but answer the same in substance. If any particulars are wanting, he should apply that the plaintiff be required to furnish them before the defendant files his written statement. If he cannot make a proper defence without going through such particulars and/or such documents referred to in the plaint, he may apply for discovery of documents. If he thinks any allegation/allegations in the plaint are embarrassing or scandalous, he should apply to have it struck out, so that he may not be required to plead those allegations. If there are several defendants, they may file a joint defence, if they have the same defence to the claim. If their defences are different, they should file separate written statements, and if the defences are not only different but also conflicting, it is not proper for the same pleader to file the different written statements.

25. Parts of Written Statement

26. How to Draft a Written Statement Denials : A defendant is said to take the defence of denial when he totally and categorically, denies the allegations contained in the plaint. It is also called ‘traverse’. [Rules as to denials: a. Denials must be specific, b. Denials must not be evasive] - Dilatory pleas : Pleas which merely delay the trial of a suit on merits have been characterized as ‘dilatory pleas’. They simply raise formal objections to the proceedings and do not give any substantial reply to the merits of the case, e.g., the plea that the court-fee paid by the plaintiff is not sufficient. Such pleas should be raised at the earliest opportunity. Objections to point of law : By such an objection the defendant means to say that even if the allegations of fact (made in the plaint) be supposed to be correct, still the legal inference which the plaintiff claims to draw in his favour from those facts is not permissible. Special defence (confession and avoidance): Special defence is more appropriately called the plea of confession and avoidance. It is a plea whereby the defendant admits the allegations made in the plaint but seeks to destroy their effect by alleging affirmatively certain facts of his own, showing some justification or excuse of the matter charged against him or some discharge or release from it. Set off and counter-claim

27. Affidavits An affidavit is a sworn statement in writing made specially under oath before an authorized officer. Affidavit shall contain only such facts as the deponent is able of his own knowledge to prove. Need for verification of affidavits is to test genuineness and authenticity of allegations and also to make the deponent responsible for allegation made. Affidavit, which is not properly verified, is no affidavit at all.

28. Application under Section 5 of the Limitation Act The Heading & Title Tile of application Under Section 5 Of The Limitation Act, 1963 For Condonation Of Delay Of Ten Weeks In Filing Reply To Application Under Section….On Behalf Of Defendant No. Body (stating grounds for condonation) Pray Signatures, Date and Place.

29. Writ Petition

30. Writ Petitions

31. IN DRAFTING ONE SHOULD POSSESS

32. Difference between Plaint & Petition Civil Procedure Code does not apply to petition under Article 226/227 of the Constitution of India. Civil Procedure code serves as a guide Pleading and Plaint are governed by Order VI and Order VII of the Code of Civil Procedure. Your petition must also be in tune with these rules not strictly but as far as possible. In the petition before high court you are entitled to quote the relevant statutory provision, extract from relevant part.

33. Types of Writ Habeas Corpus Writ Petition-The literal meaning of the term Habeas Corpus means, ‘ you may have the body of .’ It is filed when a person is illegally detained. Meaning, if the court finds out that the person is illegally detained, then it can order for the release of that person. Writ of Mandamus - Mandamus is a Latin word meaning ‘ we command ’. Mandamus is a court writ whereby the higher courts orders the lower court, tribunal, forum or any other public authority to do any ac t which otherwise also falls under the purview of their duty.

34. Cont. Prohibition -In this writ the Supreme Court or High Court to prohibits the lower courts including the tribunals, forums or any public authority do something which exceeds their jurisdiction, the Supreme Court or High Court prohibits them by issuing the writ of prohibition. Quo Warranto is by what warrant . A writ which shows on what warrant the particular person is holding the public office. Certiorari means to ‘ to inform ’. When the Court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal.

35. Exercise-I: Writ Petition The petitioner was arrested by Sub- Inspector of Police Station Maurice Nagar on September 1, 2000. A day later the police produced the petitioner before the judicial magistrate Tis Hazari District Court without relevant papers. Like the copy of FIR, case diary or general diary entries. The said magistrate remanded the petitioner to police custody for 7 days without applying his mind to the matter and without questioning the police about relevant details. On September 9, 2000 the petitioner was again produced before the magistrate by the police, again case dairy was not produced and the magistrate mechanically and without applying mind remanded the petitioner to judicial custody till Oct 8, 2000. Draft a writ for the production of the petitioner.

36. Exercise-II: Writ Petition The Lucknow University constituted under the original Lucknow University Act, 1921 is governed by the UP State University Act 1973. The P. was a student of KG Medical College Lucknow, a constituent college of the University. He appeared in th examination of Bachelor of Medicine and Surgery (Final year) conducted by the University in 1998 bearing roll no. 35. The prospectus of the University for the year 1974 mention 4 subjects provided for MBBS (final year), one being surgery. As per the rules in order to pass the MBBS (final year) examination a candidate must pass in all subjects by obtaining atleast 30% marks in theoretical paper & 40% in practical's. The candidate obtaining 45% to 60% in the theoretical paper are placed in Second Division. The petitioner secured 51 in one paper and 28 in paper 2, these two papers are to be calculated together. Therefore, the petitioner secured 30% marks. However, his name was not announced in successful candidates list. Write a petition for a writ seeking direction and order University to pass the petitioner in the second division .